Search form

Judging Roberts

True believers on the left and the right, hoping to rouse their armies for a showdown over John Roberts, immediately trumpeted two "facts" about President George W. Bush's nominee to the United States Supreme Court. Liberal bloggers floated conspiracy theories about the behind-the-scenes role he played on Bush's legal team in the epic court fight after the 2000 election, a contribution that supposedly earned the president's undying gratitude. Right-wingers smugly assumed Roberts's membership in the Federalist Society, an organization that has taken on an almost cultish mystique as both incubator and old boys' network for conservative jurists and lawyers in Washington.

Both intriguing items about Roberts, widely reported in the mainstream media, served as fodder for the talk-show blab wars.

Problem is, they aren't true. Roberts's role in the case of Bush v. Gore was minimal, according to colleagues who worked with him. Roberts did briefly go to Florida to be on hand as a legal consultant, but he was preoccupied with working on the adoption of a baby son. As for the Federalist Society, Roberts is not a member. He has attended occasional dinners held by the society, but his involvement is far less than that of a typical movement conservative, according to several Federalist Society lawyers interviewed by NEWSWEEK.

Roberts's marginal involvement as a political activist is revealing. It suggests that Roberts is not the hard-line ideologue that true believers on both sides had hoped for. The right, agitating to rescue the high court from liberals and muddy centrists, and the left, devoutly wishing to have a Bush nominee to rail against, could barely hide their disappointment with Roberts's lack of a red-meat resume. Barring unforeseen and unlikely bombshells, Roberts seems destined to be confirmed without the kind of stormy melodrama that boosts cable-TV ratings and fills the coffers of activist groups in Washington.

Self-effacing but self-assured, scholarly but easygoing, clever but not cute, Roberts, 50, will be the best witness in his own defense at his confirmation hearings in a few weeks. He will not be easily pinned down. Efforts to predict his future Supreme Court votes from past judicial opinions and legal writings (he had been on the U.S. Court of Appeals for the District of Columbia for two years and served in the Reagan White House and the Reagan and Bush "41" Justice Departments, the last as deputy solicitor general) have proved mostly fruitless or meaningless. He might vote to reverse Roe v. Wade, the court's 1973 landmark legalizing abortion on demand. On the other hand, he might not. (Best bet: he will vote to uphold Roe, but go along with state-imposed restrictions on a woman's right to choose.)

Roberts is a conservative, to be sure, but of an old-fashioned kind. He is not so much loyal to any political movement as he is to traditional institutions--to his church (he is a practicing Roman Catholic), to his family (he is married and has two adopted children, ages 4 and 5), to his schools (he is "romantic about all things Harvard," a fellow law clerk says) and, most importantly, to the law.

This last point would seem to be more obvious than significant--after all, don't all law-yers revere the law as a matter of principle, not to mention livelihood? The answer is no, not really, not in the way Roberts does. In the modern view, widely held in many law schools and among lawyers of all kinds, the law is just politics in disguise. Because the law is essentially whatever one faction or another says it is, say so-called postmodernists, there is no point in idealizing the practice of law as a kind of higher calling. But Roberts devoutly does. He sees the law as a set of time-tested rules that allow people to work out their differences and to trust each other--a body of principles and precedents that bring order and predictability to civic life, which have the effect not of dividing, but of harmonizing and unifying society.

Roberts's reverence for the law may be quaint, but it is essential to understanding the kind of justice he will be. He probably will not paint with a broad brush. He will be, in the description of University of Virginia Law School Dean John Jeffries Jr., a "bottom up" justice, sensitive to precedent and the facts of each case, not a "top down" justice who comes with a set of ready-made theories. Roberts is unlikely to march in lock step with Antonin Scalia and Clarence Thomas, two top-down justices who have tried to reverse the liberal activism of the 1960s Warren Court. Says Bill Barr, attorney general in the George H.W. Bush administration: "He does not see himself a soldier in some great cultural conflict."

Roberts, by all accounts, is enormously self-confident. But he is not arrogant or showy; he had no "ego wall" in his law office lined with photographs of him shaking hands with the good and great. Rather, his self-esteem is the quiet kind, less often seen in Washington, a more genuine self-assurance that allows him to be humble and open-minded. In part because he is so smart (he graduated from Harvard College summa cum laude in three years), he is not afraid to look at all sides of an issue before making up his mind.

This is not to say that Roberts floats serenely above the fray. He is not preachy or angry but he is intense, in a low-key way, and he has some well-disguised edginess. A driven worker, he was hospitalized for exhaustion after graduating from law school, and before Supreme Court arguments (he has made 39 of them), he is said to still behave like a neurotic grad student, relentlessly shuffling index cards. (Prepared in every way, he takes a little package of cold remedies into court with him, lest he develop a cough or the sniffles.) His Midwestern nice-guy blandness disguises a dry and often wicked wit that sometimes steers into the ribald and politically incorrect (his friends will not pass on even his innocuous remarks for fear of inflaming the left).

He is not likely to be shy, like Justice David Souter, or a loner, like Justice John Paul Stevens. On the high court, he could be the sort of centrist who uses his common sense and self-effacing humor to fashion majorities for narrowly tailored but well-grounded outcomes. In an unpretentious, sometimes puckish way, he uses his powers of logic and good-natured charm to convince.

And he always has. As a schoolboy, he demonstrated a natural gift for arguing even the weakest case. When he was in junior high school, his mother was summoned to the principal's office one day. John was in trouble for throwing an orange at a newly painted wall. "It wasn't my fault," John told his mother. She asked whether he had thrown the orange. Yes, he said. And did it hit the wall? Yes, he averred, "but it's not my fault." His mother asked him how that could be. "Tommy ducked," said John. "It was never supposed to hit the wall, it was supposed to hit him in the head. It definitely," he confidently summed up, "was not my fault."

On paper, Roberts is the classic meritocrat, a child of the rising middle class who advances by educational achievement. But his home in Long Beach, Ind., contained no history books, no encyclopedia, no flashcard games and, interestingly, no educational pressure from his parents, according to Kathy Godbey, one of Roberts's three sisters. Long Beach was "an uncomplicated place to grow up in," says a boyhood friend, Bob MacLaverty. Roberts rode his bike and played Monopoly and Scrabble with his three sisters at night. His father, moving up in the white-collar ranks at the local Bethlehem Steel plant, worked late; his mother was a homemaker.

At his strict Catholic boarding school, Roberts was "self-directed," says David Kirby, Roberts's math teacher and wrestling coach. "I've never seen anyone as highly motivated as John." Watching Roberts accept his high-court nomination reminded Kirby of watching Roberts win a wrestling match. "That little trace of a smile on his face when he was with President Bush is the same thing I saw on his face when he was about to pin somebody. It's what happens when he's thinking, 'This is working just like it's supposed to'."

Roberts arrived at Harvard after the revolution of the 1960s had burned itself out. He never had to take sides on either the left or the right. He held the door open for women, made up teasing nicknames for his roommates and studied ferociously. One prize-winning paper, titled "The Utopian Conservative," was about how the statesman Daniel Webster stuck with core convictions, despite the vicissitudes of politics. At the law school, he did not showboat like the other classroom Clarence Darrows. He steered clear of a divisive ideological debate that was beginning to roil the faculty. "We were at each other's throats," recalls Charles Fried, a Harvard Law professor. "There was a great cynicism about the law--the notion that the law is really a smoke screen for doing politics."

Roberts's stellar record at the law school won him the most-coveted clerkships with federal judges, first with Judge Henry Friendly on the U.S. Court of Appeals in New York and then with Chief Justice William Rehnquist at the U.S. Supreme Court. Rehnquist is more famous to the public, but Friendly, who died in 1986, is widely regarded by legal scholars as perhaps the greatest appeals-court judge of the 20th century. It was Friendly who became the role model for Roberts. Rehnquist, while brilliant, is what the legal experts call "result oriented." In his judicial opinions, the chief justice usually gets quickly and directly to the outcome he desires--usually a conservative one. Judge Friendly, on the other hand, carefully weighed the facts and the law, gave close attention to precedent--and perhaps most important to Roberts--was intellectually honest, almost brutally so.

It must have been extremely demanding to clerk for Friendly. He drafted his own opinions, and then had his clerks serve as a combination of high-IQ grunt, editor and sounding board. But Roberts speaks of Friendly with "deep reverence" and "a certain twinkle in his eye," says David Leitch, a former law-firm colleague of Roberts's. (Like his mentor, Roberts drafts his own judicial opinions in longhand on legal paper.) In Roberts's written opinions as a court of appeals judge, he cited Friendly by name in six cases; Rehnquist's name is never invoked.

In many ways, Roberts spent his professional life preparing to return to the Supreme Court as a justice. But he took the high road, sharpening his skills as an appellate advocate, not by schmoozing at political dinner parties or courting well-connected patrons. He went back and forth between the Justice Department and private practice in the '80s and '90s, working for one of Washington's old-line prestige firms, Hogan & Hartson. E. Barrett Prettyman Jr., long a star Supreme Court litigator, recalls observing that Roberts was a regular in the firm's cafeteria, joining an informal lunch club to debate "books, music, cases."

Arguing before the high court, despite all his nervous notecard shuffling, he appeared calm, conversational, even relaxed--yet always able to get to the heart of the matter. In one case, Roberts argued against a prisoner who claimed that being placed in a smoker's cell was cruel and unusual punishment. A justice asked whether Roberts agreed that putting a prisoner in a cell with asbestos would qualify as cruel and unusual. Well, replied Roberts, in a restaurant, diners are not asked whether they prefer the asbestos or non-asbestos seating sections.

Roberts took on all kinds of cases, without regard to politics. He has argued for and against racial preferences in different cases and under different circumstances (involving federal contracts and the special voting rights of native Hawaiians). Before the Supreme Court, he represented environmentalists trying to preserve Lake Tahoe--not because he was pro-Green, says a liberal friend, Georgetown Law professor Richard Lazarus, who was working the case, but because Lazarus had a scheduling conflict (Roberts won the case, 6-3).

At the Justice Department, where he worked for the solicitor general pleading the federal government's position before the Supreme Court, he avoided partisanship and insisted on sound legal arguments. "He was often irritated with people who he thought were pushing the Justice Department to take ideological positions that would erode the credibility of the S.G. with the court," says a colleague, who declined to be identified because he still works for the Justice Department and may argue before Roberts on the high court.

Like most responsible lawyers, Roberts did pro bono work outside his regular practice, but again, he did not seek out ideological causes, to the disgruntlement of some conservative-movement lawyers. Roberts's own interests ran more toward teaching a summer course, called Introduction to Reasoning, to disadvantaged kids entering law school.

Roberts has rarely known professional disappointment. His lowest moment: when he was initially nominated to the D.C. Circuit in 1991, but languished unconfirmed, a hostage to a standoff over judicial nominations at the end of George H.W. Bush's term. Friends say he was crestfallen. (Roberts was renominated and confirmed in 2003.)

When he's not at work, he mows his own lawn, reads history and P. G. Wodehouse (he likes the wry humor), plays golf (a little grimly when his game is off) and occasionally goes to the opera. He is a regular Catholic communicant at the Church of the Little Flower in suburban Bethesda, Md., which attracts Catholics of all political stripes (though mostly upper income). Its pastor, Msgr. Peter Vaghi, is thoughtful, worldly and cultured. Roberts is close to Vaghi, who serves as chaplain to the John Carroll Society, an old-time Catholic service organization favored by Washington's large Catholic legal and political establishment.

When liberal and conservative activists discovered last week that Roberts's wife, Jane, belongs to an anti-abortion group called Feminists for Life, they jumped to the conclusion that Roberts might be influenced by his spouse to vote to reverse Roe v. Wade. That seems unlikely, say friends who know them both. Feminists for Life is a low-key organization that does not join picket lines but advocates services for pregnant women. John and Jane Roberts, a graceful, independent and tough-minded Washington lawyer, married late and had difficulty conceiving before they adopted. (Their 4-year-old son, Jack, energetically danced at his father's televised nomination announcement, upstaging and mildly annoying President Bush, says a White House aide.)

The other clue on Roberts's leanings on Roe v. Wade is also misleading. As deputy solicitor general in the Bush 41 administration, Roberts signed a brief in Rust v. Sullivan declaring that Roe v. Wade was wrongly decided, and urging the high court to reverse it. But the language was boilerplate, representing the well-established Bush administration position; it did not necessarily show Roberts's own views. Roberts probably does think that Roe was wrongly decided, because it was based on a weak legal argument. But so do many legal scholars, including left-leaning ones. The real question is whether Roberts can overcome his respect for precedent to vote to overturn Roe. That appears doubtful. Doug Kmiec, who worked at the Justice Department on the Rust brief in 1991, suspects that Roberts thinks Roe is "too far out of the station" to roll back. Kmiec characterized Roberts's position on abortion as "probably close to the Kennedy thinking," meaning that he would be in the same camp as Justice Anthony Kennedy, who voted to uphold Roe but to allow states to restrict abortion rights in some cases, by, for instance, requiring parental notification and consent for minors. Conservative true believers regard Kennedy, a Reagan appointee, as a squishy turncoat and will be unhappy if Roberts sides with him.

Interviewing Roberts for the high-court job, President Bush did not ask how he would vote on Roe v. Wade, according to White House aides. Such a question would be considered improper political pressure on a future justice. Instead the president talked to Roberts about his judicial philosophy and matters closer to his heart, like running and working out. Roberts's amiable Midwestern manner, quick mind and easy humor won over the president.

The truth is that Roberts himself may not know how he intends to vote on abortion or any other of the great--and often unpredictable--issues of fairness and justice that will come his way on the high court. Like many justices, he may surprise the president who elevated him. But from all that can be gleaned about Roberts, he will decide each case, one at a time, with great intellectual rigor and honesty.